The opinion of the court was delivered by: Judge Caputo
Plaintiff moves for partial summary judgment on the basis that Genco is liable to it because Genco committed a material breach of the contract between the two as a matter of law; that Plaintiff performed according to the contract terms; and, that Plaintiff suffered damage.
Genco argues that summary judgment cannot be granted because whether there has been a material breach is not and cannot be a question of law. Rather, it argues it is a question of fact or at least a mixed question of law and fact. Genco also contends that Chanel did not suffer any damage because the goods which were stolen were slated for destruction and therefore had no value to Chanel. Lastly, Genco contends that any breach by it is excused because Chanel did not perform the contract by failing to follow the terms of the contract relating to termination subsequent to the theft.
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. See id. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.
Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case...." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. See Anderson, 477 U.S. at 256-57.
The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
The law of contracts provides that an actionable material breach occurs when 1) there is a contract between the parties; 2) there is consideration; 3) there is performance by the plaintiff; 4) there is a breach of the agreement which goes "to the root of the agreement between the parties" (see Septembertide Pub., B.V. v. Stein and Day, Inc., 884 F.2d 675, 678 (2d Cir. 1989) (citing Canfield v. Reynolds, 631 F.2d 169, 178 (2d Cir. 1980)); Cablevision Systems Corp. v. Town of East Hampton, 862 F.Supp. 875 (E.D.N.Y. 1994), aff'd. 57 F.3d 1062 (2d Cir. 1995); and, 5) there are damages resulting from the breach. Furia v. Furia, 116 A.D.2d 694, 498 N.Y.S.2d 12 (2d Dept. 1986).
There was a contract, viz the Return Center Operating Agreement ("RCOA"). There was consideration. As noted, the issues concern whether there was damage, whether there was performance by Chanel, and whether there was a material breach.
Genco maintains its performance is excused because Chanel failed to perform under the RCOA in that subsequent to the theft by Genco's general manager, it did not terminate the RCOA according to its terms. Subsumed in Genco's argument is that Chanel did not provide the opportunity to Genco to cure a material breach. The Termination provision of the RCOA provides: "If there has been a material breach in performance on the part of GENCO, as reasonably determined by CHANEL, which GENCO has not corrected within thirty (30) days of notification in writing thereof, CHANEL may terminate this Agreement immediately upon written notice." See RCOA at Section 2(A). Also, Section 2(C) of the RCOA provides that Chanel may terminate the RCOA upon sixty (60) days written notice to Genco. (Id.)
Given the alleged failure to terminate in accordance with the RCOA is subsequent in time to the theft of Chanel property, that would-be failure to perform by Chanel cannot excuse Genco's prior failure to perform. Moreover, while this issue can be resolved here in favor of Chanel for this reason, it remains an issue raised by Genco's Counterclaim, and nothing in this Memorandum is intended to resolve the issue of whether termination was proper. Suffice it to say, whether it was proper or not post dated Genco's actions of alleged breach for which Chanel's performance would have to be a condition precedent to any breach ...